There is a very successful campaign going on to reform the law of libel.

Jack Straw has already promised that the government will do something – what isn’t quite clear, but in reality the only way that the law can be changed is by an Act of Parliament. One of the major reasons put forward for the need for reform is the assertion that libel tourists – nasty foreign terrorists, fraudsters, politicians and despicable celebrities – are now using the English courts to sue for libel in order to suppress uncomfortable truths, scientific debate and legitimate criticism or comment. They are able to do this, it is said, because our libel laws are draconian compared with defamation law elsewhere in the world. The English law of libel therefore has a chilling effect on freedom of speech and must be changed.

The arguments put forward are summarised in the report “Freedom of Speech Is Not For Sale” by English PEN and the Index on Censorship. This report is an interesting document. I may as well say straight away that (having done quite a bit of research for this post – I’m not a media lawyer) I am in favour of some reform of the law of libel. It must be wrong that the burden of proof is on the defendant to prove that his defamatory statement is true (as opposed to the claimant having to show that it is false). That should be changed. I also think that there should be some kind of specific protection for genuine scientific debate (although this will be quite difficult to achieve – see later on in this post). There also need to be some changes to the way legal costs are dealt with. This is actually nothing to do with libel – it applies to litigation generally – and in fact a review is already under way (again, see later).

However, having said all that, I do find the report quite surprising in a number of respects – some relating to the importance of backing up your factual assertions with the evidence and some relating to a very odd assumption that seems to permeate the whole document. I find it irritating to be hit with a blunt instrument, even if it doesn’t actually hurt that much and the motive behind the bashing is one with which I completely agree. I also think it is really, really important not to oversell and simplify the situation just because that seems to create a more marketable campaign.

In the first part of my posts on this topic, I set out some points that might make you – not change your mind, exactly (because I’m assuming we all want maximum possible freedom of speech) – but, maybe, just begin to wonder whether, actually, it’s a bit more complicated than that.

Does libel tourism even exist?

Eady J doesn’t think so. He’s the Judge who tries a lot of the defamation cases in the London courts. He said in the Guardian in December 2009:

“I believe the suggestion is that there is a large queue of people, loosely classified as ‘foreigners’, waiting to clog up our courts with libel actions that are without merit and which have nothing to do with our jurisdiction… [This] is not a phenomenon we actually come across in our daily lives.”

This got a sharp response from John Kampner, chief executive of Index on Censorship (who produced the report linked to above). He said,

“Eady’s remarks appear to fly in the face of all the evidence.”

Well, only one of them is right. Either there are lots of foreigners trying to take advantage of our libel laws in our courts, or there are not. I thought I might try to find out.

The Ministry of Justice and the Department for Constitutional Affairs publish all kinds of interesting statistics as to the cases which come before the English courts. In 2004, there were 267 defamation claims issued (pg 39). In 2005, there were 252 (pg 38). In 2006, there were 213 (pg 44). The 2007 report is randomly missing. In 2008, there were 259 (pg 47). The figures for 2009 are not yet available. So the total number of defamation actions does not appear to have gone up – which it would, right, if lots of new foreign defendants were issuing writs all over the place? Almost all cases settle before they get to trial. In 2008 there were only 8 trials. By the end of 2009 there had only been 13 (para 6.2 of pg 328 – this report gets a bit more discussion below – it’s really important). (I can’t find the data for the number of trials in previous years.) But a small increase in full trials is probably neutral and on any view doesn’t support the hypothesis that the defendants are all being crushed by the power of the evil claimants, now does it?

I tried and failed to find any statistics at all dealing with the identities of the various parties to the defamation actions.

Why doesn’t she just look in the report, I hear you ask. Well, I have. And sure enough the report asserts, in terms (pg 6), that:

“Over the last decade, increasing numbers of foreign claimants have brought libel actions in the English courts, often against defendants who are neither British citizens nor resident in this country.”

There’s no reference to any evidence, or even the source for the assertion. Wait a second. I’ll just say that again. There’s no reference for this assertion.

That is, in my view, pretty rubbish. It wouldn’t stand up in court. And it’s better, isn’t it, if people show you on what they are basing their statements, so that you can see for yourself whether it is true.

The Appendix to the report cites 16 examples of defamation actions. These cases date from 1984 to 2009. You will appreciate that over that period there were probably between 5,000 and 6,250 defamation actions issued. Even if all 16 of the cases in the Appendix were between foreign parties, it wouldn’t demonstrate anything. As it is, only 11 involve a foreign element and some of those are plainly not being cited as examples of libel tourism but of other problems (such as the Matthias Rath claim against Ben Goldacre, which plainly should have been dealt with by the UK courts because the relevant articles appeared in the Guardian which has a UK audience – the problem with that action is the attempt to stifle scientific debate of Mr Rath’s claims about his vitamin pills). Further, the authors of the report haven’t given any references even for those cases. Again, this is important so that one can check that the case is being accurately summarised. It would also have been very very easy – most judgments are available online, for free, at the brilliant site BAILLI. And one assumes that the authors had a hard copy of the judgment in front of them when they wrote the report. They could easily have put that online.

So, at best, the jury’s out (sorry). If anyone can point me in the right direction to some proper hard evidence that demonstrates that foreign libel claims have increased (NB – as opposed to just examples of foreign libel claims: that won’t prove anything), I’d be very interested to see it. Especially as Mr Kampner says that the evidence exists.

Even if it does exist, does it matter?

Just calm down and think about it. Assuming English libel law is right, why are we bothered if foreigners want to come and use the English courts to protect their reputations? After all, if English law is correct in the balance it strikes between protecting freedom of speech and protecting reputation, surely it is only something to be proud of that people are able to rely on it for protection in this country and not in their own.

In commercial litigation, it is very frequently the case that one or both sides in a dispute are foreign (either individuals or foreign companies). They are quite often not only foreign but resident in a tax haven. The reason that they are in the English courts is because we have a reputation for having the fairest, most commercially sensible laws and the most unbiassed and uncorruptible judiciary in the world. Yes – if you live in the UK, you have two things to be proud of. The NHS, and the legal system. So what international businessmen do is make English law the law of their contract, and they agree in the contract that the dispute will be resolved in the English courts.

This is a very, very good thing. It brings revenue to the UK because all these businesses and individuals pay UK lawyers to conduct their disputes. It makes London even more of an international trade hub than it already is.

So why are we so bothered if some foreigners want to come and use our courts for their defamation actions? They will, after all, also have to pay. The only logical reason to object is because we think that the law itself is wrong, so that these claimants are enabled by our law to obtain judgments that they shouldn’t be able to get – not because they are foreign, but because that judgment shouldn’t have been granted against anyone.

So the real issue must be (of course) whether the law is right or wrong. Before I go on to consider this (in Part 2 of this post), there is one further point that seems to me pretty important.

Hang on – what if the claimants are right?

In all of the discussion of these issues in the English PEN report in particular but in the media generally both online and old style, it seems to be assumed in every case that the defendants’ defamatory remarks were in fact true. This is despite the fact that in several cases, there is a judgment which finds that they were not true or the defendant itself has retracted the comment and even apologised. What if, in some of these cases, the claimant is right to complain about what was said?

Now please do not say that this does not matter because anyone should be allowed to say anything they like because we all have a human right to freedom of speech. This is plainly not right. The fact that the human right to freedom of speech is qualified by a number of factors is recognised by the Conventions themselves: the European Convention of Human Rights provides at Article 10 (in full):

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [My emphasis]

So I assume we all agree that the protection of reputation is important. And, therefore, we agree that the more serious the allegation, the more harm it can do to a person’s reputation and the more important it is that the person can put that harm right. In short, preventing a person making a scandalous and untrue allegation is not an infringement of their freedom of speech. It is part of the balance of rights and responsibilities that ought to exist in a civilised democracy.

The most serious allegations might be something like paedophilia. Or war crimes. Or, perhaps, terrorism.

Which brings me on to the paradigm case which is always referred to in this context: Khalid Salim Bin Mahfouz & others v Dr Rachel Ehrenfeld. You can read Mr Justice Eady’s (yes, him again) judgment in full here. I really recommend that you do – it is quite short and extremely interesting.

Dr Ehrenfeld wrote a book called Funding Evil in which she said that Khalid Bin Mahfouz and his two sons were involved in various respects with funding terrorism (there is a very good account of the book, the English litigation and the US litigation brought by Dr Ehrenfeld on Wikipedia). 23 copies of the book were sold in the UK via Amazon and the first chapter was available online. The sons were the owners of a UK company. The family were well known to the UK banking world. The family owned 5 homes in the UK. It seems difficult to contend that these defendants didn’t have a reputation to protect in the UK. The fact that only 23 copies of the book were sold might go to the amount of damage to that reputation, but not to its existence in this jurisdiction.

The Bin Mahfouz family sued. Dr Ehrenfeld did not defend the action. She said she did not have the financial resources and that she would not be able to win due to the lack of protection afforded by English libel law (more on both of these issues in Part 2). The Bin Mahfouz family could have relied on the English presumption of falsity in order to obtain judgment. They did not. At paragraphs 42 to 63 of the judgment, Eady J goes through the evidence which they put forward to refute the evidence put forward by Dr Ehrenfeld (either in her book or in pre-court correspondence between the lawyers). He finds that there is no merit in any of the evidence put forward by Dr Ehrenfeld. Obviously, the investigation that he could carry out was limited since Dr Ehrenfeld was not there (and she would presumably say that she would have put forward some more evidence had she taken part), but it is pretty clear from Eady J’s review that there are some serious holes at the very least in the assertions put forward in Dr Ehrenfeld’s book: see in particular paragraphs 46 and 47 of the judgment. It is to be noted that later editions of Dr Ehrenfeld’s book do not attempt to deal with the points made by the Judge as to the truth of her claims. This would have been a cheap (and you might think obvious) way of putting forward her side of the story.

Eady J also records the Mahfouz family’s numerous defamation claims (leading to judgments in their favour and/or withdrawals of the various allegations) in various jurisdictions (not just England). One way of seeing this is that the Mahfouz family are using libel actions all around the world to suppress the truth about their involvement in terrorism. The other explanation is that the Mahfouz family are doing the best they can to stamp out an extremely serious and highly damaging rumour, which is simply not true. I make no comment as to which is right. I do however object to the case being discussed on the basis of an unthinking assumption that Dr Ehrenfeld must be right, simply because she has the misfortune to be the defendant in a libel action in England.

Part 2 coming soon

I therefore ask you to read Part 2 of this post (coming I hope this weekend, the day job permitting), with perhaps more of an open mind, and less of an assumption that the rights and wrongs of this issue are all one way, than you might previously have had.

You need one of these: Creationist Claims Index. It’s an app for your iphone which contains lots of nice cross-referenced, evidentially supported refutations of bonkers creationist claims. Ideal for arguing in the pub.

Most people have heard about the libel action against Simon Singh being brought by the British Chiropractic Association. In brief, Simon Singh wrote an article in the Guardian discussing chiropracty, in which he said,

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

The BCA sued for libel (the sentences they say are libellous are in bold).

There are defences to such a claim. One is justification: if you made a statement of fact, you can prove that what you said is true. A true statement cannot be a libel. Another is fair comment: if what you said is comment, or opinion, then you have to prove that it was fair. Basically that means you have to show you had good grounds for saying it (but not that it was true – obviously, an opinion is only an opinion, it can’t be true or false). You can see it’s a bit easier to defend a comment than a statement of fact.

So a judge hearing a libel case has to decide whether the relevant words were a statement of fact or a comment. Before he can do that, he has to decide what those words actually meant (so that he can go to decide whether that meaning was true, or fair comment, whichever applies).

In the BCA v Singh case, there was a preliminary hearing on 7 May 2009 in which the Judge in charge of the case, Mr Justice Eady, decided the use of the word “bogus” meant that Mr Singh was saying that the BCA “knowingly” promotes bogus treatments. He also went on to find that this was a statement of fact, not comment. The full text of the judgment is recorded here. If right, this would mean that at the final trial, Mr Singh would have to prove that it was factually correct that the BCA deliberately (as opposed to carelessly) put forward treatments which they knew did not work. Obviously, this would be near impossible.

The judgment attracted a firestorm of criticism of the BCA for suing, and the wholesale demolition of the now infamous “plethora” of evidence which the BCA adduced in support of the claimed efficacy of chiropractic for colic, etc: see for example Ben Goldacre’s summary here, Jack of Kent’s brilliant posts on the subject here, here and here and the editor of British Medical Journal here. It has also become the cause celebre which is spearheading a campaign for the reform of UK libel laws, in the course of which Mr Justice Eady has come in for some pretty stringent criticism.

Mr Singh has now got permission to appeal from the Court of Appeal (on 14 October 2009). You can read Lord Justice Laws’ (I know, I know) short but pithy judgment giving permission to appeal here. The Court of Appeal is apparently going to be constituted of the Lord Chief Justice, the Master of the Rolls and the frighteningly intelligent Lord Justice Sedley. I think Mr Singh is likely to win, at least on the issue of the meaning of “bogus.” It seems clear that the true meaning of Mr Singh’s remark was that the treatments themselves were bogus, not the promotion of them. This is particularly so when the sentence is taken in the context of the following paragraph.

This will be a very good result. I am in complete agreement with the comments made by the “Bad Science” bloggers as to both the fact that Mr Justice Eady got the point wrong and as to the serious undesirability of defamation actions being used to stifle scientific debate.

The case and the criticisms of the Judge have received a lot of attention is some quite surprising quarters. The papers have been all over it, and not just the broadsheets. See for example this article in The Mail and this article in the Times (and Mr Dacre’s article discussed below). Notice that Mr Justice Eady comes in for some personal criticism. Now you may wonder why the newspapers, and the tabloids in particular, are bothering to try to explain to their readers about why chiropractors have got it wrong and are generally campaigning to help Simon Singh. Especially when they are, generally speaking, promoters of woo and general health/anti-vaxxer nonsense.

The answer is that Eady J’s (wrong) decision in the Singh case has come to be conflated with issues of “libel tourism” and, most importantly, with issues of privacy. This is because Mr Justice Eady is the leading defamation and privacy judge in the UK. He is frequently allocated to those cases because when he was a practising barrister he specialised in media law at one of the top barristers’ Chambers in the country (so he might be thought to know what he’s talking about). The newspapers, in particular the tabloids, are interested in rulings on these topics because they want to print stories about footballers shagging strippers, or about MPs being homosexual, or about any leading figure engaging in any (almost always) sexual activity that they can get all prurient about. They want to print these stories because they sell papers.

Mr Justice Eady’s decisions in various previous cases have stopped some of these types of stories being printed, or have awarded damages against various newspapers for libel or for invasion of privacy.

Before going on, I just need to explain the difference between defamation and invasion of privacy. You defame someone (libel if you do it in writing, slander if you do it orally) essentially if you say something about them which cannot be justified or is not fair comment, and which causes damage to their reputation. In the UK, you sue for invasion of privacy under the heading of an old legal principle called breach of confidence, as amplified by the Hunan Rights Act 1998 which makes the European Convention on Human Rights law in this country. It is now established that your Article 8 Convention right to privacy is protected by the breach of confidence claim: you are entitled to keep information in respect of which you have “a reasonable expectation of privacy” private, and you can claim damages against anyone who publishes it. The main defence to such a claim is that the disclosure was in the public interest.

It should be obvious that what the law is trying to do is to maintain a balance between the obviously right principle of a free press and the importance of freedom of speech, and the also obviously right principle that a person (even a celebrity) should not have to suffer every detail of their lives printed in the press for us to gossip about – we might like it, but that doesn’t make it right. It’s not possible to lay down a bright line rule – every case has to be looked at on its own facts to decide where the balance lies.

One of the best examples of this sort of case is Mosley v News Group Newspapers Limited. The specific paper in question was the News of the World. News Group is the defendant because it is the owner of the Screws (and The Times, The Sun and the Sunday Times). Mr Justice Eady decided this case. His judgment, which you can read in full here, is totally, totally brilliant.

Max Mosley was the president of the FIA (ie he was in charge of Formula 1 motor racing). He is also the son of Oswald Mosley. The News of the World published two very nasty stories about him, with photos (obtained by using a concealed video camera. They put the video on the website). The headlines were “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” and “EXMOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS.” The News of the Screws alleged that Mr Mosley had participated in group sex, had participated in S&M and, as you can see from the headlines, that the event had included a Nazi theme including Nazi- or concentration camp-based role play.

Mr Mosley did not sue for libel. He sued for breach of confidence. The Screws said that there was a public interest defence, because if a public person in charge of a large organisation (also likely to be an employer of Jewish people) such as Mr Mosley had Nazi sympathies, the public were entitled to know. There wasn’t really any dispute about this. The argument was about whether the events on the video really did have a Nazi theme.

The newspaper relied on 10 key points which they said demonstrated this. You will have to read the judgment itself to appreciate the full scale demolition of these arguments and the total, hilarious, inevitable collapse of the Screws’ case. I’ve only got time for one here. Point 7 was “He is shaved – just like the Jews.” But as Mr Justice Eady says at paragraph 53:

“[The Screws’ barrister] also relied upon the fact that [Mr Mosley] was “shaved.” Concentration camp inmates were also shaved. Yet, as [Mosley’s barrister] pointed out, they had their heads shaved. [Mr Mosley], for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter.” I naturally could not check from the DVD, as it was not his face that was on display.”

The News of World simply invented the Nazi allegation in order to spice up their story about Max Mosley engaging in standard kink with other consenting adults, in private. They were probably advised by their lawyers that in the absence of the Nazi stuff, there were simply no grounds for printing the stories – other than their desire to make money by capitalising on people’s unfortunate fascination with gossip about sex. The Judge concluded,

“[These matters]… seem to me, however, to be marginal and in no way to support the Defendant’s primary case that the events of 28 March involved Nazi role-play – still less (as was originally the [Screws’] case that [Mr Mosley] had specifically ordered a Nazi or concentration camp scenario. It is fair to record also that I found no evidence at all of his “mocking the humiliating way Jews were treatd.” Yet, for many people, that must have been one of the most shocking and memorable of the “exclusive” revelations. It was not surprising that the Holocaust Centre should have responded that his conduct (as described in the newspaper) was an “insult to millions of victims, survivors and their families.” No doubt others felt the same.”

The papers, however, hated it. They presented the judgment as a full scale attack on freedom of speech. Paul Dacre, the editor of the Daily Mail, had this to say in his keynote speech to the Society of Editors on 9 November 2008 as recorded in the Guardian (read full article here):

“This law is not coming from parliament – no, that would smack of democracy – but from the arrogant and amoral judgments – words I use very deliberately – of one man. Justice David Eady has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.

…

Recently, the same judge in effect ruled that it is perfectly acceptable for the multimillionaire head of a multibillion sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him. He found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World claimed, though for the life of me that seems an almost surreally pedantic logic as some of the participants were dressed in military-style uniform.

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Eady. To him such behaviour was merely “unconventional”. Nor, in his mind, was there anything wrong in a man of such wealth using his money to exploit women in this way. But what is most worrying about Eady’s decisions is that he is ruling that – when it comes to morality – the law in Britain is now in effect neutral, which is why I accuse him, in his judgments, of being “amoral”. But most worrying is that when it comes to suppressing media freedom, the good Eady is seemingly ubiquitous.”

You will see that Mr Dacre does not hesitate to misrepresent the nature of the findings by the Judge. He also misrepresents the position of the women in question: four of them gave evidence on behalf of Mr Mosley at the trial as to their willing participation in and enjoyment of the S&M scene and their friendship with Mr Mosley, including evidence of arranging a similar party as a birthday present for him (see paragraphs 106 and 107 of the judgment). The fifth woman was the person who sold the story to the Screws. He’s got the military uniform bit wrong, too. Mr Dacre further does not mention the Screws’ editor’s attempts to blackmail the four women into selling their side of the story by threatening to publish photographs revealing their identity unless they co-operated: see paragraphs 79 to 97 of the judgment.

Most importantly, he misrepresents the nature of the case and the nature of the law. The law of privacy and the law of libel are not about “morality” in the sense that Mr Dacre is using the word. It is nonsensical to say that the law ought to come from Parliament – the common law relating to libel and privacy already exists and Eady J is obliged to apply it. Neither he nor any other judge can apply any other rules unless and until Parliament passes a new Act. It is not Eady J’s fault if this has not been done (even assuming that it needs to be done). And if the law is morally neutral (as one would hope it would be), neither Eady J nor any other judge can do anything about that, either: see paragraphs 124 to 134 of the judgment.

This also deals with the “libel tourism” point. It may or may not be right that foreigners can sometimes sue in this country for a libel that would not be actionable in their own country. But while the law of this land permits it, Eady J and all other judges are obliged to hear and to determine libel tourism cases. It’s just not up to them.

Another of Eady J’s recent cases deserves a mention. This one is called Metropolitan International Schools Ltd v Designtechnica UK Ltd. You can read the full judgment here. It is about whether Google is liable as a publisher of defamatory information which can be found on websites to which it provides links (you can only be liable if you are either the author or the publisher of the defamatory remark). This was a new point. Eady J decided that Google was not a publisher and therefore could not be liable in defamation. Quite good for freedom of speech, no?

In short, what I want to say is this.

The reason that the newspapers, and in particular the tabloids, are on Simon Singh’s side is not because they give a toss about evidence based medicine, or the stifling of academic and scientific debate using the threat of litigation, or the fact that Eady J’s decision as to the meaning of the word “bogus” is definitely wrong. They are happy to jump on any bandwagon involving Eady-bashing, because it suits their agenda to include this particular mistake in their campaign to be allowed to publish any slimy little story they want – under the banner of freedom of speech.

It is necessary to be careful of your bedfellows, even in a righteous cause.